Steve Gutierrez
Question: We aren’t sure we want to permit someone who isn’t vaccinated to work closely with us and are particularly concerned because the unvaccinated employee is sitting next to an enclosed area with a fully vaccinated individual who has an immunocompromised infant. How do we protect the vaccinated employee and her infant when we cannot say who is/is not vaccinated because of the Health Insurance Portability and Accountability Act (HIPAA)?
Answer: These are good questions to ask and should be part of the interactive process with the unvaccinated employee to see if there’s a reasonable accommodation that doesn’t pose an undue hardship. Additionally, under the present circumstances, the unvaccinated employee may be considered a “direct threat” that cannot be eliminated or reduced by reasonable accommodation.
Obviously, the unvaccinated employee should wear a mask or work from home, but you should analyze whether he can be spaced even further apart from the vaccinated employee. It doesn’t sound like that’s possible since the area is enclosed, and it appears their placement may be a necessary part of their jobs, but these are both factors that can and should be considered in the interactive process.
Regarding mandatory vaccinations in the workplace generally, the Equal Employment Opportunity Commission (EEOC) has recently offered guidance answering some workplace vaccination questions by indicating federal antidiscrimination laws don’t prohibit you from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. But if you encourage or require vaccinations, you must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other workplace laws, according to the EEOC.
